- Katedra Powszechnej Historii Państwa i Prawa UJ
Gołębia 9 Kraków 31-007 PL
Jan Halberda
Jagiellonian University, Faculty of Law and Administration, Faculty Member
- Currently I am a visiting researcher at Yale Law School. Back in home I am an associate professor at Jagiellonian Uni... moreCurrently I am a visiting researcher at Yale Law School. Back in home I am an associate professor at Jagiellonian University (Kraków, PL). My field of research covers Anglo-American private law, comparative law and legal history. In recent years I have completed my habilitation programme which was the equitable estoppel in common law (focus on England & Wales, United States, Australia). For several years I have held positions of head of legal, compliance officer and CEO of a large corporation in Poland. I am a practising attorney-at-law (radca prawny) and expert witness (biegły sądowy) on private law in common law jurisdictions.edit
The book attempts to analyze the status of several Anglo-American legal doctrines referred to as equitable estoppel, promissory estoppel, and proprietary estoppel. It examines the English, American and Australian law from the 18th century... more
The book attempts to analyze the status of several Anglo-American legal doctrines referred to as equitable estoppel, promissory estoppel, and proprietary estoppel. It examines the English, American and Australian law from the 18th century onwards. The book draws analogies to legal devices detectable in continental civil law and characterized by the goal similar to that performed by various types of estoppel. Among these devices there may be listed those found in the European harmonization projects (PECL, DCFR, CESL) as well as those found in the national civil codes, and specifically such as principle of good faith and fair dealing or the prohibition on the abuse of rights.
Common law jurisdictions recognize a number of specific estoppel doctrines. The latter prevent the negative effects of an inconsistent conduct of the other party and counteract the occurrence of detriment or other negative consequences (often referred to by a vague notion of "unconscionability") resulting from the party’s reliance on the other party's inconsistent conduct.
Estoppels are used today as "safety valves" in almost all fields of Anglo-American private law. The courts apply them to settle accounts for the expenditures made on someone else's property and also to protect the addressees of formally defective promises (made in breach of the statute of frauds) as well as to protect the parties to the negotiations that did not lead to the contract's conclusion. Estoppels can also be found in family-law relations as a device to settle the accounts of former cohabitants or to modify the partition of the deceased’s estate.
Despite the broad scope of its application, the law on estoppels is far from being settled. Significant differences occur in its interpretation under various jurisdictions. While in English law the promissory estoppel might be used only as a defence (“a shield”), the American and Australian law recognize it as an independent cause of action (“a sword”). There are many controversies and disputes that are currently taking place both in the courts and in the scholarship. They lead to legal uncertainty and unpredictability of decisions. The book attempts to discuss these issues and sometimes point to potential solutions.
Common law jurisdictions recognize a number of specific estoppel doctrines. The latter prevent the negative effects of an inconsistent conduct of the other party and counteract the occurrence of detriment or other negative consequences (often referred to by a vague notion of "unconscionability") resulting from the party’s reliance on the other party's inconsistent conduct.
Estoppels are used today as "safety valves" in almost all fields of Anglo-American private law. The courts apply them to settle accounts for the expenditures made on someone else's property and also to protect the addressees of formally defective promises (made in breach of the statute of frauds) as well as to protect the parties to the negotiations that did not lead to the contract's conclusion. Estoppels can also be found in family-law relations as a device to settle the accounts of former cohabitants or to modify the partition of the deceased’s estate.
Despite the broad scope of its application, the law on estoppels is far from being settled. Significant differences occur in its interpretation under various jurisdictions. While in English law the promissory estoppel might be used only as a defence (“a shield”), the American and Australian law recognize it as an independent cause of action (“a sword”). There are many controversies and disputes that are currently taking place both in the courts and in the scholarship. They lead to legal uncertainty and unpredictability of decisions. The book attempts to discuss these issues and sometimes point to potential solutions.
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The book is an upgraded version of the doctoral dissertation, which was awarded the first prize in the XLIV National Competition "State and Law" (XLIV Ogólnopolski Konkurs „Państwa i Prawa") for the best habilitation and doctoral... more
The book is an upgraded version of the doctoral dissertation, which was awarded the first prize in the XLIV National Competition "State and Law" (XLIV Ogólnopolski Konkurs „Państwa i Prawa") for the best habilitation and doctoral dissertations in the field of legal sciences (2009). The book deals with the evolution of the law of unjust enrichment in England. The book is concerned with the forms of action based on implied promises that in old England were called quasi-contracts. They were not identical with the Roman quasi-contarcts. Such actions developed into a law of unjust enrichment in the late 20th century. The book is divided into two parts. The first presents the common law environment in which the implied contracts were evolving: the sources of law (1), the system of courts (2), the concept of procedural writs (forms of actions) (3) and the course of court proceedings (4). The second part presents the history of quasi-contracts. It begins with the medieval contract law (5), then deals with the development of writ of assumpsit (6) and procedural formula of indebitatus assumpsit (7). Next chapter (8) discusses Lord Mansfield’s decision in Moses v. MacFerlan (1760) that was critical for the subsequent development of the law of unjust enrichment (8). The longest chapter presents the 19th century case law on specific quasi-contracts, that evolved later into the unjust factors on the basis of which the modern law of unjust enrich-ment was founded (9). In the final part, the book presents the law of unjust enrichment that emerged at the end of the 20th centuries, discussing such leading cases as Lipkin Gorman v. Karpnale Ltd (1991) and Woolwich Equitable Building Society v. IRC (1993).
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The book descirbes the story of the TBSP UJ (Law Students' Society at Jagiellonian University). The society has been founded in 1851 and since then is the oldest active students' society in Poland.
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The paper finds the emergence of the concept of good faith and fair dealing (good faith in an objective sense) in English contract law as a consequence of a dialogue that has been conducted by courts of leading common law jurisdictions... more
The paper finds the emergence of the concept of good faith and fair dealing (good faith in an objective sense) in English contract law as a consequence of a dialogue that has been conducted by courts of leading common law jurisdictions over the past several decades. While the prevailing view denies recognition of the general principle of good faith in the law of England and Wales, recent cases acknowledge, in certain circumstances, the possibility of implying it between parties to a contract. This change of heart is plausibly enhanced by a comparative analysis of authorities that originate in such Commonwealth countries as Australia and Canada. The courts in these jurisdictions, in turn, carefully examine those American (United States') sources, wherein the duty of good faith in the performance of contracts was overtly recognized much earlier.
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Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view... more
Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.
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The paper discusses the history of the English law doctrine according to which the mistake of law (error iuris) is a bar for restitution. The author seeks to analyze the premises of mistake that led to recovery of the payment. Since the... more
The paper discusses the history of the English law doctrine according to which the mistake of law (error iuris) is a bar for restitution. The author seeks to analyze the premises of mistake that led to recovery of the payment. Since the adjudication of the leading case Bilbie v. Lumley (1802) it was settled by the courts that he who had paid while operating under mistake of fact could demand restitution. On the other hand the one who acted under mistake of law could not. Over the last two centuries, until the ground-breaking decision in Kleinwort Benson Ltd v. Lincoln City Council (1999), the distinction into mistake of law and mistake of fact was very important in cases of undue payment. The author ventures whether there are any foundations for the promotion of the thesis that the aforementioned distinction might be an example of the reception of continental doctrines by the English legal system.
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The paper starts with the presentation of factors that propably stand behind the analogies between Roman Civil Law and English Common Law (1). These factors concern the framework of sources of law – the dominance of case-law, the dogma of... more
The paper starts with the presentation of factors that propably stand behind the analogies between Roman Civil Law and English Common Law (1). These factors concern the framework of sources of law – the dominance of case-law, the dogma of unalterable good-old law (2). Then the text presents the phenomenon of domination of procedural rules over the substantive ones. Even English legal historians, although reluctant to concede that Romanisation also took place in Albion, admit that to a certain degree “their” original writs and forms of action in common law functioned similarly to the formulary system of Roman law (3). A number of parallels was detectable in the sphere of substantive law as well. There the paper focuses on the obligation law, especially the contract law (4) and restitution law (5). Due to the procedural reasons (“ubi remedium, ibi ius” - rule), the separate branches of obligation law were founded on the closed systems of nominate contracts, torts (6) and unjust factors leading to restitution respectively. It is emphasized, however, that these analogies should not be deemed to be the examples of the reception of the Roman law by the English courts (7).
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The paper is a chapter in a book edited by Phillip Hellwege "The past, present, and future of Tontines : a seventeenth century financial product and the development of life insurance". What was a tontine? The tontine was offered as a kind... more
The paper is a chapter in a book edited by Phillip Hellwege "The past, present, and future of Tontines : a seventeenth century financial product and the development of life insurance". What was a tontine? The tontine was offered as a kind of insurance for life but in fact was a mixture of an investment plan for raising capital, a group annuity and a lottery. The article presents the history of tontines in rather short time in the second half of the 19th century when they were offered for public on the Polish market.
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The present paper discusses the concept of undue payment as found in the Polish Code of Obligations of 1933. The research is comparative in nature since it also explores the institution in question in other contemporary codes (Code Civil,... more
The present paper discusses the concept of undue payment as found in the Polish Code of Obligations of 1933. The research is comparative in nature since it also explores the institution in question in other contemporary codes (Code Civil, ABGB, BGB and Obligationrecht), Roman law, and the Polish Civil Code of 1964 (1). The discussion is concerned with the framework of legal provisions on undue payment in the aforementioned sources (2). Furthermore, while applying a framework of the Roman condictiones the paper analyses the grounds of the action (3). It presents circumstances which allowed a payor to seek recovery of his payment (4–6) and those which precluded the claim (7). Then the paper gives an illustration of the scope of a payee's liability (8). In his fi nal remarks, the author attempts to assess undue payment as regulated in the Code of Obligations (9).
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This paper is concerned with the law of restitution that was in force in Poland during the inter-war period. After 1918 Poland was divided into five legal regions (section 1.1). The state authorities nominated the Committee of Drafters... more
This paper is concerned with the law of restitution that was in force in Poland during the inter-war period. After 1918 Poland was divided into five legal regions (section 1.1). The state authorities nominated the Committee of Drafters whose task was to unify the law (1.2). In respect of unjustified enrichment the drafters took into account contemporary laws – Code Napoléon, ABGB, BGB, Obligationenrecht (1.3). After more than one decade the code of obligations (1933) finally went into force in 1934. The code provided for the premises (2.1) and the object of the action founded on unjustified enrichment (2.2). The code lacked however the regulation that might answer the question on this remedy’s nature, namely whether it was a subsidiary or an independent one (2.3). While the drafters took into account Austrian, French, German and Swiss civil codes, it seems that the Polish unjustified enrichment was more alike to German and Swiss laws (3).
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In recent decades the doctrine of proprietary estoppel has been applied to avoid the formalism of the Wills Act 1837. That act sets out the requirements of formal validity of a will. The proprietary estoppel could be applied if a carer... more
In recent decades the doctrine of proprietary estoppel has been applied to avoid the formalism of the Wills Act 1837. That act sets out the requirements of formal validity of a will. The proprietary estoppel could be applied if a carer has spent a significant part of his or her life taking care for another in reliance of his promise to transfer all or part of the estate to her. Afterwards it frequently turned out that irrespective of the deceased’s promises and the carer’s detrimental reliance the estate passed to distant relatives due to non-compliance with the Wills Act 1837. In such cases the courts often intervened to give a helping hand to such carers thereby fulfilling the goal of equity – as in a case of Re Basham (1986). Over time, the doctrine of proprietary estoppel began to be abused. Today it is applied in cases of prospective heirs contesting the wishes of their relatives who are still alive. Such was the case of Suggitt v. Suggitt (2012). It seems that proprietary estoppel might be doing more harm now as a source of uncertainty, a Trojan horse that undermines legal certainty and the predictability of decisions. The issue in question is becoming more significant as in the current COVID-19 circumstances the requirements of a formal will are much more difficult to meet, and digital wills are not a remedy for all. In many cases, courts will again seek recourse in proprietary estoppel.
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The article discusses the English doctrine of estoppel that emerged on the borderland between common law and equity law. After a short presentation of the most important categories of estoppel, the author presents leading cases in the law... more
The article discusses the English doctrine of estoppel that emerged on the borderland between common law and equity law. After a short presentation of the most important categories of estoppel, the author presents leading cases in the law of estoppel. He starts with Earl of Oxford case (1615) that was an example of contest between the Westminster courts and Court of Chancery. This case resulted in finding that equity law prevails over the common law. Then the article discusses the 19th and 20th century cases of Hughes v. Metropolitan Railway Co. (1877) and Central London Property Trust Ltd. v. High Trees House Ltd. (1947) that lay the foundation of promissory estoppel. Despite the fact that in 1873 the common law and equity law courts have been merged there are still differences between the rights in law and the rights at equity. In the conclusion the author attempts to present those differences that play crucial role in the law of estoppel.
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The article discusses the issues of evolution and premises of the applying of English concept known as promissory estoppel. In the present paper the development of the legal doctrine referring to the aforementioned problems is illustrated... more
The article discusses the issues of evolution and premises of the applying of English concept known as promissory estoppel. In the present paper the development of the legal doctrine referring to the aforementioned problems is illustrated with the examples of several leading cases such as that of High Trees (1947) and Combe v. Combe (1951). In these cases it was lord Denning who was a decision maker. The author of the paper analyzes the general principles on which the promissory estoppel might be invoked. He draws our attention to the fact that in the course of litigation it is necessary to prove the existence of a promise on the basis of which a promisee (the person who was promised something), while reasonably relying on this promise decided to do something or to refrain from doing it, and simultaneously it would be inequitable if a promisor (the person making a promise) could call off what he had promised. The author of the paper made an effort to answer a question whether the abuse-of-right clause provided for in Art.5 of the Civil Code may be regarded as the Polish equivalent of promissory estoppel.
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The author of the paper tries to discuss the role played by legal history in the disputes carried on in the House of Lords. He analyzes the cases of unjust enrichment (law of restitution). On that occasion he investigates the lines along... more
The author of the paper tries to discuss the role played by legal history in the disputes carried on in the House of Lords. He analyzes the cases of unjust enrichment (law of restitution). On that occasion he investigates the lines along which the judges used to invoke the landmark case of Moses v. MacFerlan (1760). Upon having depicted the details of the aforementioned case (2) he presents the doctrine of implied contract that prevailed in the 19th century (3) and discusses the opinions of the lords articulated on the turn of 21st century on occasion of their discussing the meaning of the principle of unjust enrichment (4a). Likewise he discusses the introduction into the English law of the change of position defence (4b) and he comments on the court decisions on interest (4c). Finally, the author investigates the referrals to the legal history as made in order to justify the overruling of precedent (5).
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The paper discusses the history of the English law doctrine according to which the mistake of law (error iuris) was a bar for restitution. The author seeks to analyze the premises of mistake that led to recovery of the payment. Since the... more
The paper discusses the history of the English law doctrine according to which the mistake of law (error iuris) was a bar for restitution. The author seeks to analyze the premises of mistake that led to recovery of the payment. Since the adjudication of the leading case Bilbie v. Lumley (1802), it was settled by the courts that he who had paid while operating under mistake of fact could demand restitution. On the other hand, the one who acted under mistake of law could not. Over the last two centuries, until the ground-breaking decision in Kleinwort Benson Ltd v. Lincoln City Council (1999), the distinction into mistake of law and mistake of fact was very important in cases of undue payment. The author ventures whether there are any foundations for the promotion of the thesis that the aforementioned distinction might be an example of the reception of continental doctrines by the English legal system. The English language version of the paper has been already published in Tijdschrift voor Rechtsgeschiedenis (2014, vol. 82).
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The paper discusses Fibrosa S.A. v. Fairbairn Lawson Combe Barbour Ltd (1942), the case considered as one of several landmark cases in English law of restitution. What was at stake in litigation before the House of Lords was whether a... more
The paper discusses Fibrosa S.A. v. Fairbairn Lawson Combe Barbour Ltd (1942), the case considered as one of several landmark cases in English law of restitution. What was at stake in litigation before the House of Lords was whether a Polish plaintiff should recover a prepayment transferred pursuant to a contract that had become frustrated because of the outbreak of war in 1939. The lords had to decide on the application of two potentially dissonant doctrines – the frustration and the total failure of consideration. But what made Fibrosa case famous was an obiter dictum delivered by lord Wright. This eminent judge declared that English law should provide remedies for unjust enrichment. That is the very reason why the case is still being cited by the lawyers today.
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The subject of the article is the unjust enrichment in English law. The author presents the evolution of the law of restitution in the 18th and 20th centuries. Then he discusses the required elements for a claim in unjust enrichment,... more
The subject of the article is the unjust enrichment in English law. The author presents the evolution of the law of restitution in the 18th and 20th centuries. Then he discusses the required elements for a claim in unjust enrichment, presenting the current dispute whether the cause of action is based on the so-called unjust factors or on the basis of unjust enrichment. The dispute is presented, among others on the example of cases regarding the restitution of benefits rendered in the performance of swap contracts and the refund of tax receivables conducted at the turn of the 20th and 21st centuries. The author discusses the issues of limitation period for the restitution claims in the context of the declarative theory of common law.
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The present paper discusses the American law of unjust enrichment as found in the Restatement the Third, Restitution and Unjust Enrichment (R3RUE) published by the American Law Institute in 2011. The author begins with the short history... more
The present paper discusses the American law of unjust enrichment as found in the Restatement the Third, Restitution and Unjust Enrichment (R3RUE) published by the American Law Institute in 2011. The author begins with the short history of the Restatements of the Law movement (1). He attempts to describe both the formal structure of the treatise (2) and the meaning of its keywords such as “unjust enrichment” and “restitution” (3). In the following sections the premises of restitution claims are presented: the absence of basis (4), the defendant’s enrichment at the plaintiff’s expense (5). The paper covers such separate doctrines included in the Restatement’s provisions as the unrequested intervention (negotiorum gestio) either (6). The author researches also the remedies that could be applied in restitution cases (7), issues on the concurrence of claims (8) and the limitation (9). In the final section he attempts to draw conclusions on conflicting nature of the unjust enrichment law in America (10).
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The article presents the evolution that led to the transformation of English quasi-contract law into the modern law of unjust enrichment. The paper was prepared on the basis of a doctoral dissertation - then not yet published – entitled... more
The article presents the evolution that led to the transformation of English quasi-contract law into the modern law of unjust enrichment. The paper was prepared on the basis of a doctoral dissertation - then not yet published – entitled “The evolution of claims corresponding to Roman condictiones in English common law from the Middle Ages to the late nineteenth century”, which received in 2009 the first prize in the XLIV “Państwo i Prawo” ("State and Law") National Competition for the best habilitation and doctoral dissertations in the field of legal sciences.
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The paper starts with the presentation of factors that propably stand behind the analogies be-tween Roman Civil Law and English Common Law (1). These factors concern the framework of sources of law – the dominance of case-law, the dogma... more
The paper starts with the presentation of factors that propably stand behind the analogies be-tween Roman Civil Law and English Common Law (1). These factors concern the framework of sources of law – the dominance of case-law, the dogma of unalterable good-old law (2). Then the text presents the phenomenon of domination of procedural rules over the substantive ones. Even English legal historians, although reluctant to concede that Romanisation also took place in Albion, admit that to a certain degree “their” original writs and forms of action in common law functioned similarly to the formulary system of Roman law (3). A number of parallels was detectable in the sphere of substantive law as well. There the paper focuses on the obligation law, especially the contract law (4) and restitution law (5). Due to the procedur-al reasons (“ubi remedium, ibi ius” - rule), the separate branches of obligation law were found-ed on the closed systems of nominate contracts, torts (6) and unjust factors leading to restitu-tion respectively. It is emphasized, however, that these analogies should not be deemed to be the examples of the reception of the Roman law by the English courts (7).
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Starting with the Middle Ages, the system of writs (forms of actions) began to dominate the English law. Like Roman actiones which may be regarded as equivalents of writs, thus also the latter allowed to determine the circumstances in... more
Starting with the Middle Ages, the system of writs (forms of actions) began to dominate the English law. Like Roman actiones which may be regarded as equivalents of writs, thus also the latter allowed to determine the circumstances in which an individual was guaranteed to protection of law. The list of writs was exhaustive while the law was considered to be something that was not subjected to changes. Therefore the legal fictions were found to be the only mechanism that made it possible to adapt the common law to the evolving socio-economic circumstances.
Thanks to these fictions the parties involved in the litigation could reach the objectives that they desired and that otherwise (without resorting to the fiction) might be unattainable by them. The exploitation of the fiction consisted in the invoking by the trial participant the circumstances that notoriously were not true, the adversary party being simultaneously prevented from proving the opposite.
In the course of time the fictions became a characteristic feature of the common law. It was thanks to their application that in the 15th through 17th centuries the scope of the Westminster courts’ jurisdictional competence became enlarged. The fictions enabled these courts to settle matters that originally were beyond the scope of their jurisdiction. The application of fictions resulted also in the broadening of the scope within which the particular writs could be resorted to. This consequently led to the extention of legal protection to the situations with respect to which the earlier common law proved helpless for the lack of any legal remedy.
Thanks to these fictions the parties involved in the litigation could reach the objectives that they desired and that otherwise (without resorting to the fiction) might be unattainable by them. The exploitation of the fiction consisted in the invoking by the trial participant the circumstances that notoriously were not true, the adversary party being simultaneously prevented from proving the opposite.
In the course of time the fictions became a characteristic feature of the common law. It was thanks to their application that in the 15th through 17th centuries the scope of the Westminster courts’ jurisdictional competence became enlarged. The fictions enabled these courts to settle matters that originally were beyond the scope of their jurisdiction. The application of fictions resulted also in the broadening of the scope within which the particular writs could be resorted to. This consequently led to the extention of legal protection to the situations with respect to which the earlier common law proved helpless for the lack of any legal remedy.
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The waiver of tort was a legal fiction that enabled a plaintiff to sue in quasi-contract in lieu of tort. This was a common law doctrine that resulted from the domination of procedural rules over substantive ones. Each of medieval writs... more
The waiver of tort was a legal fiction that enabled a plaintiff to sue in quasi-contract in lieu of tort. This was a common law doctrine that resulted from the domination of procedural rules over substantive ones. Each of medieval writs initiated peculiar proceedings that had been drafted specially for separate causes of action. As this proceedings differentiated between themselves, plaintiffs attempted to use those writs that restricted the scope of applicable defenses. Hence one of the most popular actions was a quasi-contractual formula named “indebitatus assumpsit for money had and received”. As compared with the tort actions this formula enabled plaintiff to avoid consequences of “actio personalis moritur cum persona” rule and shortened periods of limitation. That is the reason why plaintiffs attempted to apply the quasi-contractual remedy against tortfeasors. The waiver of tort doctrine took its name from the fiction that an injured party waived his rights based on tort and approved all acts performed by a tortfeasor. In consequence the former party was authorized to sue the latter in quasi-contract. As the forms of action had been abolished in late 19th century, lawyers began to perceive “waiver of tort” as a misnomer and started to focus rather on the fact that from one cause of action separate remedies might arise. The change of this attitude was possible due to transformations that took place in common law. The procedural rules ceased to dominate over the substantive ones.
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The paper presents the pleading, and thus one of the stages of the early English common law in civil disputes. Pleading was a stage in the proceedings during which opponents of the trial presented their arguments. Medieval jurisprudence... more
The paper presents the pleading, and thus one of the stages of the early English common law in civil disputes. Pleading was a stage in the proceedings during which opponents of the trial presented their arguments. Medieval jurisprudence of Westminster courts developed the so-called rules of pleading, i.e. rules determining how parties present process material. These principles concerned, among others the availability of individual pleas in law, the order in which they are made. The pleading rules depended on the type of action used (writ) - the choice of a writ that triggered the proceedings resulted in the need to adapt to the pleading requirements characteristic of this writ. In turn a violation of these rules of pleading by one of the parties could lead to losing the trial. That is why English lawyers have just focused on exploring the secrets of the procedure. This was related to the specific structure of English common law, in which formal and legal norms largely determined the scope of application of substantive legal norms.
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The thesis discusses the introduction of the trial by jury in England. The trial by jury is one of the most charac-teristic features of the English common law. Its introduction into the procedure applied in the Westminster courts took... more
The thesis discusses the introduction of the trial by jury in England. The trial by jury is one of the most charac-teristic features of the English common law. Its introduction into the procedure applied in the Westminster courts took place in the 12th through 13th centuries, during the reigns of Henry II and Edward I. Its introduc-tion was bound with working out of the new mode of procedure whose objective was to provide for the posses-sory protection. It is also worthwhile to note that the trial by jury functioned as the remedy against the older methods of detecting the truth. The medieval common law used to resort to such irrational methods of proof as the ordeals, wager of law, wager of battle. Henry II implemented his reforms through statutory law. The Clar-endon assize of 1166 (grand jury, assize of novel disseisin) and Windsor assize of 1179 (grand assize) are the milestones worth of mentioning in this respect. In the next century, these were the courts, and not the statutes, that were responsible for the law creating process. The trial by jury was fully involved in this process. The development of this trial was strongly connected with the evolution of the writ of trespass, a new tort action. In its final section the article describes the specific features of discussed trial, and specifically the requirement of unanimity of juries in making their verdict, the mechanism of attaint procedure, the special verdict and the mode of nisi prius trial.
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Pursuant to the maxim that actio personalis moritur cum persona, the claims and debts of the party become extinct on the day of its death. That is the reason why in English common law the successors could not sue their predecessor’s... more
Pursuant to the maxim that actio personalis moritur cum persona, the claims and debts of the party become extinct on the day of its death. That is the reason why in English common law the successors could not sue their predecessor’s debtors; on the other hand, they were protected against the creditors of the deceased. It is difficult to exaggerate the importance of doctrine for the legal relations, especially within the scope of contract law.
In the early years (12th–13th centuries) of the functioning of the doctrine nearly all personal actions came into play. However, lawyers began to create more and more exceptions that narrowed the maxim’s impact. As a result, at the beginning of the 17th century (the Pynchon’s case, 1611) the court had in fact transformed the doctrine of actio personalis moritur cum persona into the exception.
It is worthwhile to note that the maxim’s history may act as an example of the peculiarity of English law and the domination of its procedural rules. Throughout the centuries the most important reason against the transmission of rights and duties was the practical impossibility of the wager of law’s application. In that case lawyers could only modify rules of evidence. Instead, in England it was decided to treat the claims and debts of the deceased as extinct. As a result, the consequences of the actio personalis moritur cum persona doctrine went much too far.
In the early years (12th–13th centuries) of the functioning of the doctrine nearly all personal actions came into play. However, lawyers began to create more and more exceptions that narrowed the maxim’s impact. As a result, at the beginning of the 17th century (the Pynchon’s case, 1611) the court had in fact transformed the doctrine of actio personalis moritur cum persona into the exception.
It is worthwhile to note that the maxim’s history may act as an example of the peculiarity of English law and the domination of its procedural rules. Throughout the centuries the most important reason against the transmission of rights and duties was the practical impossibility of the wager of law’s application. In that case lawyers could only modify rules of evidence. Instead, in England it was decided to treat the claims and debts of the deceased as extinct. As a result, the consequences of the actio personalis moritur cum persona doctrine went much too far.
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The article was published in the commemorative book devoted to the late legal historian - Professor Krystyna Kamińska of Nicolaus Copernicus University in Torun, Poland. The paper presents the English leading case from contract law –... more
The article was published in the commemorative book devoted to the late legal historian - Professor Krystyna Kamińska of Nicolaus Copernicus University in Torun, Poland. The paper presents the English leading case from contract law – Slade vs Morley (1602). This case is the proper topic for an article in memoriam of legal historian. Accounts of the course of the proceedings allow to state the presence of changes that occurred at the turn of the Middle Ages and modern times in Westminster procedural practice. These transformations were closely related to the key issue of sources of law in the common law legal culture. On the other hand, the decision in the Slade case was extremely important for the subsequent development of substantive law - the rules governing English contract law. From a procedural perspective, Slade v. Morley is therefore the result of an earlier history of English law. From the legal and substantial law perspective, the subsequent evolution of contract law is a consequence of the decision reached in 1602.
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The thesis concerns the Westminster courts’ judicature on the liability arising from gambling. It begins with the second half of the 17th century when the Parliament passed the first statute prohibiting peculiar lotteries and wagers... more
The thesis concerns the Westminster courts’ judicature on the liability arising from gambling. It begins with the second half of the 17th century when the Parliament passed the first statute prohibiting peculiar lotteries and wagers (1664). The paper reaches the half of the 19th century when the Gaming Act of 1845 provided for the general ban on gambling. During the period of 200 years, although sometimes with hesitancy, the common law courts recognized the wagering contracts as legal and enforceable (Earl of March v. Pigot, 1771, Jones v. Randall, 1774). The courts worked out a number of exceptions: the wagers contravening statute law (Foster v. Thackery, 1771, Whaley v. Pajot, 1799), public policy (Allen v. Hearn, 1785, Atherford vs. Beard, 1788) or morality (Da Costa v. Jones, 1778). In the last paragraph the paper examines the cases of restitution of money transferred due to the illegal wager (Cotton v. Thurland, 1793, Smith v. Bickmore, 1812).
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The present paper discusses the unjust enrichment as found in the Polish Code of Obligations of 1933. The research is of comparative nature since it also explores the institution in question in other contemporary codes (Code Civil, ABGB,... more
The present paper discusses the unjust enrichment as found in the Polish Code of Obligations of 1933. The research is of comparative nature since it also explores the institution in question in other contemporary codes (Code Civil, ABGB, BGB and Obligationenrecht) as well as in the Polish Civil Code of 1964. The discussion is concerned with the the framework of legal provisions on unjust enrichment in the aforementioned regulations (1). Furthermore in analyses the grounds of the action (2), the scope of the duty to return the enrichment (3), the nature of the claim – whether it is construed as an autonomous or as a subsidiary action (4). In his final remarks, the author attempted to assess the unjust enrichment as regulated in the Code of Obligations (5).
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The present paper discuses the undue payment as found in the Polish Code of Obligations of 1933. The research is of comparative nature since it also explores the institution in question in other contemporary codes (Code Civil, ABGB, BGB... more
The present paper discuses the undue payment as found in the Polish Code of Obligations of 1933. The research is of comparative nature since it also explores the institution in question in other contemporary codes (Code Civil, ABGB, BGB and Obligationrecht), Roman law and the Polish Civil Code of 1964 (1). The discussion is concerned with the framework of legal provisions on undue payment in the aforementioned sources (2). Furthermore, while applying a framework of the Roman condictiones the paper analyses the grounds of the action (3). It presents circumstances which allowed a payor to seek recovery of his payment (4-6) and those which precluded the claim (7). Then the paper gives an illustration of the scope of payee’s liability (8). In his final remarks, the author attempted to asses the undue payment as regulated in the Code of Obligations (9).
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This review presents a book recently authored by Łukasz Jan Korporowicz on the presence of Roman law in eighteenth century England. The book is divided into five chapters that deal with following issues: 1) teaching of ius civile in... more
This review presents a book recently authored by Łukasz Jan Korporowicz on the presence of Roman law in eighteenth century England. The book is divided into five chapters that deal with following issues: 1) teaching of ius civile in Oxbridge, 2) teaching of ius civile outside the universities, 3) the study of Roman law and obtaining formal degrees, 4) the impact of civil lawyers on the socio-political environment of England, and finally, 5) literature on Roman law.
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The present paper is a review of the book by Marcin Łolik entitled Współczesne prawo kontraktów – wybrane zagadnienia (in English: The Modern Law of Contracts – Selected Issues (edited in Warsaw 2014, pp. 166), which was released in the... more
The present paper is a review of the book by Marcin Łolik entitled Współczesne prawo kontraktów – wybrane zagadnienia (in English: The Modern Law of Contracts – Selected Issues (edited in Warsaw 2014, pp. 166), which was released in the series "Legal monographs." Reviewed work discusses a number of contractual clauses chosen by the author. Issues discussed are therefore contractual provisions, but not the contract law itself as a branch of law. In the book the reader would not find such frequently applied clauses as the choice of court, indexation tools, liquidated damages, and, finally, amendment or termination clauses. Therefore the reviewer presents the thesis that the book should be regarded as a collection of legal essays, and not as an academic monograph.
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THE DOCTRINE OF WAIVER OF TORT IN THE LIGHT OF ENGLISH COMMON LAW TRANSFORMATIONSummary The waiver of tort was a legal fiction that enabled a plaintiff to sue in quasi-contract in lieu of tort. This was a common law doctrine that resulted... more
THE DOCTRINE OF WAIVER OF TORT IN THE LIGHT OF ENGLISH COMMON LAW TRANSFORMATIONSummary The waiver of tort was a legal fiction that enabled a plaintiff to sue in quasi-contract in lieu of tort. This was a common law doctrine that resulted from the domination of procedural rules over substantive ones. Each of medieval writs initiated peculiar proceedings that had been drafted specially for separate causes of action. As this proceedings differentiated between themselves, plaintiffs attempted to use those writs that restricted the scope of applicable defenses. Hence one of the most popular actions was a quasi-contractual formula named “indebitatus assumpsit for money had and received”. As compared with the tort actions this formula enabled plaintiff to avoid consequences of “actio personalis moritur cum persona” rule and shortened periods of limitation. That is the reason why plaintiffs attempted to apply the quasi-contractual remedy against tortfeasors. The waiver of tort doctrine too...
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The paper discusses the history of the English law doctrine according to which the mistake of law (error iuris) is a bar for restitution. The author seeks to analyze the premises of mistake that led to recovery of the payment. Since the... more
The paper discusses the history of the English law doctrine according to which the mistake of law (error iuris) is a bar for restitution. The author seeks to analyze the premises of mistake that led to recovery of the payment. Since the adjudication of the leading case Bilbie v. Lumley (1802) it was settled by the courts that he who had paid while operating under mistake of fact could demand restitution. On the other hand the one who acted under mistake of law could not. Over the last two centuries, until the ground-breaking decision in Kleinwort Benson Ltd v. Lincoln City Council (1999), the distinction into mistake of law and mistake of fact was very important in cases of undue payment. The author ventures whether there are any foundations for the promotion of the thesis that the aforementioned distinction might be an example of the reception of continental doctrines by the English legal system.